[2023] KEELRC 2241 (KLR)
The court found that the claimant was not engaged as a regular employee under the Employment Act but rather on a piece rate basis, as corroborated by both parties' evidence and a third-party witness. The claimant's own testimony indicated she worked only part of the day for the respondent, and her assertion of...
Source-derived case information.
- Citation
- [2023] KEELRC 2241 (KLR)
- Parties
- Claimant: Petronilla Shisunu Litali; Respondent: Sachin Madhusudan Sawjani
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 599 of 2018
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- claim dismissed
- Judges
- L Ndolo
- Legal Topics
- Unlawful Termination, Piece Rate Employment, Employment Contracts, Domestic Workers, Remedies for Termination
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Petronilla Shisunu Litali
Claimant
Sachin Madhusudan Sawjani
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant was a regular employee or engaged on a piece rate basis.
- 2 Whether the claimant is entitled to compensation for unlawful termination and terminal dues.
Ratio Decidendi
The court found that the claimant was not engaged as a regular employee under the Employment Act but rather on a piece rate basis, as corroborated by both parties' evidence and a third-party witness. The claimant's own testimony indicated she worked only part of the day for the respondent, and her assertion of working for the respondent's mother for the remainder was unsupported. As such, the legal foundation for her claims—premised on a regular employment contract—was absent. The court held that she was fully compensated for her piece rate work and therefore not entitled to the remedies sought for unlawful termination or terminal dues.
Court Disposition
claim dismissed
Orders
- The claimant's suit is dismissed in its entirety.
- Each party will bear their own costs.
Full Case Text
Judgment text and source record
36 paragraphs
Litali v Sawjani (Cause 599 of 2018) [2023] KEELRC 2241 (KLR) (28 September 2023) (Judgment)
Neutral citation: [2023] KEELRC 2241 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause 599 of 2018
L Ndolo, J
September 28, 2023
Between
Petronilla Shisunu Litali
Claimant
and
Sachin Madhusudan Sawjani
Respondent
Judgment
Introduction 1. By her Statement of Claim dated April 23, 2018 and filed in court on April 25, 2018, the Claimant has sued the Respondent for compensation for unlawful termination of employment and payment of terminal dues. The Respondent filed a Response dated June 10, 2021.
2. At the trial the parties testified on their own behalf. In addition, the Respondent called his neighbour and landlord, Satwant Singh Kalsi.
The Claimant’s Case 3. The Claimant states that she was employed by the Respondent as a house-help in October 2008. She claims to have been paid a daily rate of Kshs 100 which translated to a monthly pay of Kshs 3,000.
4. The Claimant avers that she worked for the Respondent until 14th June 2017 when her employment was terminated on allegations of break-in and stealing.
5. She seeks the following remedies:a.Notice pay………………………………………………..Kshs 12,597. 80b.Unremitted NSSF deductions…………………………….…14,400. 00c.Leave pay for 8. 7 years………………………………………..94,987. 40d.Underpayment…………………………………………………..457,207. 50e.House allowance………………………………………………..135,212. 80f.12 months’ salary in compensation……………………151,172. 40g.Costs plus interest
The Respondent’s Case 6. In his Response dated June 10, 2021, the Respondent states that he had engaged the Claimant, as a part-time house servant, working discontinuously between October 2008 and April 2009 and in June 2017.
7. According to the Respondent, the Claimant worked for only one (1) hour per day for which she was paid Kshs. 180 for the hour.
8. The Respondent states that on June 21, 2017, a robbery took place at his residence. He claims to have reported the incident at Kileleshwa Police Station, where the Claimant was summoned for questioning, since she was among the people who had access to the house.
9. The Respondent denies terminating the Claimant’s employment and states that the Claimant herself deserted work for more than seven (7) days commencing on June 26, 2017.
10. The Respondent claims to have made attempts to call the Claimant to resume her duties but the Claimant was unreachable.
11. The Respondent denies the Claimant’s claims for compensation, notice pay, unremitted NSSF dues, leave pay, underpayment and house allowance.
Findings and Determination 12. The first issue for determination in this case has to do with the nature of the Claimant’s engagement with the Respondent.
13. The Claimant bases her claim on an alleged employment contract between herself and the Respondent.
14. Section 2 of the Employment Act defines an employee as:a person employed for wages or a salary and includes an apprentice and indentured learner
15. The same provision defines an employer as:any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company
16. A contract of service is defined as:an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies
17. The Respondent’s case is that the Claimant worked for him on part time basis. This was corroborated by the Respondent’s neighbour and landlord as well as the Claimant herself who told the Court that she worked from 8. 00 am until 2. 30 pm and sometimes from 5. 00 am to 7. 00 am. The Claimant’s allegation that she worked for the Respondent’s mother for the remainder of the working hours was not supported by any evidence.
18. From the evidence on record, it is safe to conclude that the Claimant was not engaged as a regular employee as defined in the Employment Act. Rather, she was engaged on piece rate basis, for which she was fully compensated.
19. Consequently, her claim which is premised on a presumed regular employment contract, is without basis and is dismissed.
20. Each party will bear their own costs.
21. Orders accordingly.
DELIVERED VIRTUALLY AT NAIROBI THIS 28TH DAY OF SEPTEMBER 2023LINNET NDOLOJUDGE